This article originally appeared in The Detroit News October 15, 2024.

It just got easier for the government to keep secrets in Michigan.

A court ruling will allow hundreds of thousands of local government employees to withhold records from the public. Earlier this year, the Court of Appeals decided that a Rochester teacher had no obligation to provide curriculum records to parents under the state Freedom of Information Act. The Michigan Supreme Court refused to intervene. As a result, records created by local government employees are no longer subject to FOIA, even if those records relate to official public business.

The Legislature should address this terrible ruling during its upcoming lame duck session.

Like every state, Michigan has a law that requires state and local government to provide public records to people who ask for them. The law opens with a sweeping statement of intent: “The people shall be informed so that they may fully participate in the democratic process.” This ruling makes that intent much harder to fulfill.

Carol Beth Litkouhi is a parent who lives in the Rochester Community School District. She asked for materials used in a high school class titled “A History of Ethnic and Gender Studies.” The school district refused to provide many of the records Litkouhi asked for, arguing that the law doesn’t require it to provide records held by individual teachers. Litkouhi sued, but the trial court ruled against her.

In February, the Court of Appeals agreed. The court reasoned that FOIA applies to local public bodies, not to their individual employees. Therefore, said the court, “records created and retained by individual teachers are not public records subject to disclosure for purposes of FOIA.”

Litkouhi appealed her case to the Michigan Supreme Court, but on September 25 the court declined to take the case.

The ruling creates a perverse incentive. Not only could employees hide bad behavior from their elected bosses, but elected officials could bury scandals by insisting they not be given records in the first place.

The court just pushed a huge percentage of public employees in Michigan beyond the reach of FOIA. According to the U.S. Bureau of Labor Statistics, Michigan has more than 374,000 local government employees. Those employees are scattered across 83 counties, 552 school districts and 1,773 cities, villages and townships.

The ruling will lead to years of subsequent litigation as local governments test its boundaries. When does a public body own the record rather than the employee? Can a record be transferred away from the public body to an employee? What about emails exchanged between two employees? Are all records an employee creates exempt from disclosure, or only some? Which ones?

Litkouhi is disappointed.

“Nothing taught in our schools should be under the cover of secrecy,” she said. “If there is any reason why secrecy is desired or needed, that alone is a red flag.”

Michigan already lags other states because our governor and legislature are exempt from FOIA. This ruling makes things much, much worse.

Imagine the scenarios where the ruling could be abused: Local police officers decide to racially profile residents. A teacher sends suggestive and explicit material to a student. A municipal employee helps secure a contract in exchange for kickbacks. A local water employee fails to safeguard against lead contamination. The residents or journalists who investigate the misuse of public funds are now hamstrung.

Thankfully, something can be done. The state Senate passed a good FOIA reform bill in June. The House could amend the bill and restore transparency.

Let’s hope it doesn’t take a major scandal to motivate the Legislature to act. Then again, with this ruling in place, would we even learn about it?

Permission to reprint this blog post in whole or in part is hereby granted, provided that the author (or authors) and the Mackinac Center for Public Policy are properly cited.